Smokeasy: In the wake of law enforcement crackdowns on bars which violate the state's no smoking laws, bar owners and patrons are engaging in Prohibition-style strategies such as setting up lookouts for police, using phone trees to warn each other of impending busts, providing secret smoking chambers and keeping at the ready a supply of Altoids tins filled with water for quick snuffing. Tomorrow the Santa Clara County District Attorney's office will release a Top 10 list of the worst smoking bars in the county.

Photograph by George Sakkestad

Smokin' Blues

Bar owners are bypassing California's smoking ban thanks to some clandestine practices that recall Prohibition's heyday. Will they never give up?

By Genevieve Roja

JUST INSIDE THE DOOR to the entrance of the Woodham Lounge is a cigarette dispenser circa 1972, with the word "Kool" and a backlit photograph of a field and stream in a nontoxic location somewhere in Colorado or Montana. At the bar, a tubby man is sipping a drink and caressing his box of Marlboro Reds resting on the counter. In front of the Megamaxx video machine, a woman with teased blonde hair has her flamingo-pink-colored lips wrapped tightly around a cigarette, taking attenuated drags. Toward the back of the bar, a guy drinking Bud and a girl in a black beret, black halter and black and white gingham shorts are playing pool and don't appear to be smoking.

"Is it OK to smoke in here?" my companion asks the bartender.

"I don't give a shit," says the bartender, a wrinkled man who bears a striking resemblance to Jack Palance.

My companion drags a Newport Menthol 100 from his cigarette pack and lights it up. He reaches for one of several ashtrays laid out in a horizontal line on top of the bar.

"It's one of the few places where you can smoke," says the bartender, who's moving down the length of the bar to put away a bottle of Captain Morgan spiced rum.

"It's like I told the fire marshal the other night," he continues, "'What are you going to do? Haul me to jail? 'Cause the next person who's going to jail is you. It's not illegal to smoke in my bar.'"

Woodham Lounge reeks of cigarette charisma but suffers from smoking- ban karma. The Santa Clara neighborhood dive, as of late, is getting some heat for its indifferent attitude toward California's smoking ban, thanks to several I-don't-give-a-shit acts of defiance. In a matter of weeks, the case of Marlene Hopkins, owner of Woodham Lounge, will go to trial. Her crime? Smoking in the food preparation area during an undercover bust. Santa Clara County Deputy District Attorney Chris Arriola says it will be the first misdemeanor for the county and the first for the Bay Area with regard to smoking law. If Hopkins is convicted, she can spend six months in jail or pay a $1,000 fine. But she isn't off the hook. Cal-OSHA (California Occupational Safety and Health Agency) might fine Hopkins if she is convicted and if they are referred her case. The city of Santa Clara may choose to take away her business license and Alcohol Beverage Control may take away her liquor license, not to mention that the DA can sue Hopkins for unfair business practices.

Tomorrow, more bars will be exposed when Arriola's office releases a Top 10 list of the worst smoking bars in Santa Clara County. The list, which is released every six months since the ban took effect in January 1998, includes the name and address of each bar that has committed smoking offenses. Though the list may persuade bar owners to comply, it does not discourage bars from giving up their smoking persona altogether. In fact, bar owners and bar patrons are outsmarting their no smoking foes so that cigarettes don't go out with the Scotch and water. Some new, covert practices to prolong smoking indoors have ranged from lookouts watchful for the police to filling Altoids tins with water for quick snuffing. Other deceptive bar owners favor phone trees and secret smoking rooms.

Credit the bizarre behavior to the New Prohibition, in which cigarette smoking--not alcohol consumption--is fueling a seasoned underground network, so that, ban or no ban, smoking in bars continues almost infinitely.

Smoke and Get Smoked

LIKE THE WOODHAM LOUNGE, many of the other bars on November's Top 10 list are also neighborhood haunts. Bartenders know the regulars, usually locals from across the street or next door. They're in dart leagues or pool leagues together, even date one another. Some frequent the same bars within a two-to-three-mile radius. So if there's a stranger or a new face entering the bar's inner circle, everyone knows it. Nearly all of the bars on our pub crawl had easygoing, charitable bartenders. Barmaids gave hugs and punctuated sentences with "hon" and "sweetheart." At the Star Lounge in Santa Clara, they offered spaghetti with meat sauce, salad and garlic bread--all for free. At almost every place with a lingering smoking habit, the jukebox blasted music and cable sports were displayed on big-screen televisions. The only thing missing in these seemingly homey, smoky environments was beds.

Homey or not, this doesn't fly with the people who investigate complaints of smoking in bars: the American Lung Association, which also fields complaints from the public, or local law enforcement, which conducts stings and issues citations. In addressing complaints from bar owners that the citations have been unfair, health officials contend that bars have been given ample time to comply. A year after the law was passed, enforcement was still only issuing warnings. Since April 2000, citations and fines have been the norm: $271 (including court fees) for a first-time offense, $542 for a second and $1,300 for a third. Bar owners may be jailed for repeat offenses, as is the case of the Woodham Lounge owner, who was warned and cited several times. The same bartender who said he didn't give a shit could only shrug when the tubby man at the bar said, "You know, the next time the fire marshal comes in, you're going to get shut down."

Curiously Strong

HER OFFICIAL TITLE IS "coordinator of inspections," but Dorothy Tule, a Santa Clara County health education specialist working in the Tobacco Prevention and Education program, is really a narc.

Tule says in a sweet and helpful tone that all she wants to do is assist bars that are having trouble maintaining smoke-free environments. Public health even gives away free "no smoking" signs that bar owners can post at the door and in their establishment, as required under the no smoking law. (Implicitly stated under that law is one instructing bar owners to ask individuals who smoke inside the bar to refrain from doing so.) According to Arriola, bar owners don't even have to spend money on plastic signs prohibiting smoking. Any sign, even a "No Smoking Allowed" sign scrawled in pen or pencil, will suffice.

Despite all efforts by county health to educate bars on maintaining smoke-free environments, bars are still crafting wily diversions to do the exact opposite.

Above the urinal in the men's bathroom of Woodham Lounge sits a large ashtray, at the ready for a quick nic in the john. Between two urinals is a spittoon used as an ashtray in the men's bathroom of the Claran Cocktail Lounge in Santa Clara. Directly above the spittoon, a vent sucks in air. Just a few blocks away, a Portuguese neighborhood bar, Martin's, offers empty Starkist tuna cans as ashtrays. At Hyde Park Lounge on North First Street, the offering is Altoids tins. Fill it with water, deposit the offending cigarette, and presto--not a trace of stinky smoke. Star Lounge in Santa Clara adopted the Altoids scheme but dropped it once they were cited.

According to Arriola, Courts Lounge in Campbell adopted its own smoking security measure. If a new face walked in, regulars would wait to see if he lit up. If he did, they proceeded to do the same. If he didn't, they'd go outside, fearing a snitch. On a packed Thursday night at Antonio's Nut House in Palo Alto, where there had been numerous complaints to the DA's office about multiple smokers and lookouts, there were no evidence of either, unless the lookout was the burly and mustached gentleman checking IDs at the door. Antonio's had received about 18 citations in six months, according to Arriola. C&J's in Santa Clara, which had been cited in November for allowing smoking in secret in the men's bathroom, checked out cleanly on one of their busiest nights, Kamikaze Karaoke Tuesday.

First Line of Defense

THE NETWORK OF POLICING for smoking ban offenders works on four levels. First, a complaint is made, usually anonymously, by someone who had visited a bar and was perturbed by the smoking. That complaint is made to the county health department or the local American Lung Association office, which has a secondhand-smoke hotline. From there, public health investigates the bar that was reported, since local law enforcement handles the citations. In other instances they comb bars that have been randomly selected, from Palo Alto down to Gilroy. Traveling in pairs and wearing casual clothing to blend in with the bar-going crowd, "health educators" like Tule go in and have a drink. They never identify themselves, don't smoke and don't stay long. Tule says they're there to check for compliance, nothing more. Sometimes, she says, patrons seem to feel the narc vibe when she and a partner roll through.

"Some are really hostile to the new-faced people," says Tule, sounding slightly hurt. "Certain bars I feel like I don't fit in and they [the patrons] are wary of who you are."

Asked if she saw or heard anything suspicious about concealing smoking in bars, Tule says that some bars set up phone trees. One bar owner or bartender will call another bar and tell them the police are coming.

The third line of defense is Arriola, who processes the information filtered from public health. He then dispenses it to local law enforcement, who can coordinate stings and do the majority of citing. Once they arrive on the scene and discover a patron smoking, they can bust that person or the owner, depending on the circumstances. There is no haughtiness in Campbell Police Chief Dave Gullo's voice when he talks about bars that get busted. Several owners of Campbell bars sincerely want to reform.

"No bar owner wants to be the subject of a criminal investigation," he says. "Once the owners were notified that there was a problem at the facility, they jumped all over it. They did whatever it took."

My Only Vice

THE BAR OWNERS resistance movement is not limited to Altoids tins and phone trees. Libertarian rebels like John Johnson, owner of four Lucky John's bars in Orange County, are taking the matter to court.

A self-proclaimed nonsmoker, Johnson argues that smoking merely accompanies bar culture and that patrons make a conscious decision to enter bars where they know smoking might occur.

"I am a supporter of a smoking environment anywhere," he says. "You do not have to go into a bar. That is a choice you make with your feet and your dollars."

Johnson and his lawyer have filed a legal brief arguing that they are not guilty of violating the smoking ban. To carry out his argument, Johnson cites a section in the ban exempting workplaces with five or fewer full- or part-time employees from smoking restrictions. To meet the "five or fewer" rule, the smoking areas must not be accessible to minors; all employees who enter the smoking area must consent to permit smoking; no one is required as part of their job to work in an area where smoking is permitted; and the air from the smoking area must be filtered directly outside. The prosecution, however, says that a stand-alone bar such as Lucky John's does not fall under these categories, despite Johnson's protests that the employees at his bars have all consented to allow smoking.

"I believe in liberty and choice," says Johnson, who is filing the case on a legal, not criminal, basis. "As long as you're not harming someone else, where is the crime?"

In some areas in the northern section of the state, law enforcement has joined the resistance. Sutter County Sheriff Jim Denney and his deputies refuse to enforce the ban, leaving the issuing of citations to the county health department.

"I told the Board of Supervisors, 'My deputies have better things to do than to be the smoking police,'" Denney says. "I didn't want them to be responsible for going into an establishment [and busting smokers] when they're voluntarily there to begin with."

His department hasn't received any complaints--"nothing at all," he says--about the department's policy of nonenforcement or complaints about people smoking or not smoking in bars. Police Chief Gullo isn't so liberal. Californians voted to ban smoking in public establishments, so it's his job to honor that decision by policing those establishments. His staff isn't inconvenienced either, because most of them are performing establishment or bar checks--checks for health violations, serving to minors and intoxicated patrons--anyway. Like killing two birds with one stone, he says.

"We don't look at it as frivolous," Gullo says. "Our job is to enforce the law. When there's alcohol, you have a level of problems, so our goal is to make sure we are on top of if it."